Davis-Haas v. Exeter Twp. Zoning Hearing Bd.
| Decision Date | 12 July 2017 |
| Docket Number | No. 1739 C.D. 2016,1739 C.D. 2016 |
| Citation | 166 A.3d 527 |
| Parties | Sue DAVIS–HAAS, Richard H. Haas, Ida C. Smith, Zildia Perez, Leon Perez, Donna Galczynski, Kevin Galczynski, Alan Ganas, Renee Froelich, Scott Matthews, Patricia J. Miravich, John J. Miravich and William Ryan, Appellants v. EXETER TOWNSHIP ZONING HEARING BOARD and MetroDev V, LP and Exeter Township |
| Court | Pennsylvania Commonwealth Court |
Osmer S. Deming and Jan D. Krafczek, Reading, for appellants.
Michael J. Gombar, Jr., Wyomissing, for appellee Exeter Township Zoning Hearing Board.
Jill E. Nagy, Wyomissing, for appellees MetroDev V, LP and Exeter Township.
BEFORE: HONORABLE ROBERT SIMPSON, Judge, HONORABLE ANNE E. COVEY, Judge (P.), HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION BY JUDGE SIMPSON
In this, the most recent of several related appeals in this land use case, Objectors1 ask whether the Court of Common Pleas of Berks County2 (trial court) erred in affirming a decision of the Exeter Township Zoning Hearing Board (ZHB) that sustained MetroDev V, LP's (Landowner) procedural validity challenge. Objectors argue the trial court erred in failing to: (1) enforce a settlement agreement reached by the parties; (2) find that Landowner's 2005 procedural challenge to and the process Landowner followed was defective and Objectors' rights were violated; and (3) determine Landowner lacked standing to prosecute its procedural validity challenge. Upon review, we affirm.
This case has an extensive procedural history, most of which was set forth in this Court's decision in Metro Dev V, LP v. Exeter Township Zoning Hearing Board (Pa. Cmwlth., No. 1367 C.D. 2013, filed July 24, 2014), 2014 WL 3697529 (unreported). There, we explained that Objectors own properties adjacent to Landowner's proposed residential development. Landowner's property (subject property) consists of approximately 46.36 acres3 in an area where the boundary lines of the Township of Exeter (Township), and two surrounding municipalities, Lower Alsace Township and Alsace Township, meet.
Prior to July 25, 2005, the Township's Zoning Ordinance No. 500 (old ordinance) was in effect. Under the old ordinance, the subject property was zoned low density residential. On July 25, 2005, the Township enacted Zoning Ordinance No. 596 (new ordinance), which changed the zoning classification of the property from low density residential to suburban residential. The changed classification had the practical effect of reducing the number of residential lots permitted on the subject property from 30 to 7.
In August 2005, Landowner filed a challenge to the validity of the new ordinance with the ZHB pursuant to former Section 10909.1(a)(2) of the Pennsylvania Municipalities Planning Code (MPC)4 alleging procedural irregularities in its adoption.
In September 2005, a preliminary subdivision plan was submitted for a residential development on the subject property called "Windy Willows," comprising 34 residential lots, 26 of which were located within the Township. The plan was based on a sketch plan that was previously submitted while the old ordinance was still in effect. Waivers were sought from the Township's Subdivision and Land Development Ordinance (SALDO).
On September 26, 2005, the Township and Landowner entered into a settlement agreement in which Landowner agreed to withdraw its procedural validity challenge to the new ordinance in exchange for the Township's agreement to review and potentially approve the plan under the terms of the old ordinance. Shortly thereafter, Landowner withdrew its validity challenge.
In July 2008, the Township approved Landowner's plan, subject to certain conditions. The Township also granted waivers from certain SALDO sections but it reserved its determination of other waiver requests until the final plan approval stage. Pursuant to the terms of the settlement agreement, the Township reviewed the plan under the old ordinance.
Objectors subsequently filed a land use appeal with the trial court. Landowner intervened. The Township filed a motion to dismiss the appeal, arguing Objectors lacked standing to appeal because they did not appear in the proceedings below. The trial court granted the Township's motion and dismissed Objectors' appeal. On appeal, this Court held Objectors, as adjacent landowners, had substantive standing to object to subdivision plans both before the Township and in land use appeals, even though they did not appear before the Township or its Planning Commission. Miravich v. Twp. of Exeter 6 A.3d 1076 (Pa. Cmwlth. 2010) ( Miravich I ). We reversed and remanded.
On remand, the trial court denied Objectors' land use appeal. The trial court determined the Township did not err by reviewing the plan under the old ordinance based on the terms of the settlement agreement because municipalities are legally authorized to settle challenges to zoning ordinances. The trial court also upheld the Township's grant of waivers to Landowner, and it held Landowner had standing to submit the plan.
Objectors filed another appeal to this Court, asserting: (1) the proper procedure to challenge the new ordinance was to have a hearing before the ZHB; (2) the settlement agreement was an invalid exercise of the Township's authority to settle the challenge to the new ordinance; (3) the Township erred by applying the old ordinance instead of the new ordinance to the plan; (4) the Township's approval of the plan was defective; and, (5) Landowner lacked standing to seek preliminary plan approval. Miravich v. Twp. of Exeter 54 A.3d 106 (Pa. Cmwlth. 2012) ( Miravich II ).
Ultimately, this Court held the Township lacked authority to determine which zoning ordinance would be applied to the plan for three reasons. First, Landowner's procedural challenge fell within the exclusive jurisdiction of the ZHB, not the Township. Additionally, Landowner filed its challenge with the ZHB and did not bring the matter before the Township as a substantive validity challenge. Finally, even if Landowner filed its challenge with the Township, the Township was required to hold a hearing within 60 days of the request and provide notice of the hearing, events which did not occur. This Court concluded that, by entering into the settlement agreement with Landowner and agreeing the old ordinance would apply to the plan, the Township usurped the ZHB's role and violated the MPC's notice and hearing provisions. Citing the trial court's opinion, this Court also noted that the parties did not dispute that the enactment process for the new ordinance was procedurally defective.
This Court also held that the settlement agreement was an invalid exercise of the Township's authority to settle the procedural validity challenge to the new ordinance. We determined the settlement agreement was akin to contract zoning, which the Pennsylvania Supreme Court expressly disapproved in Carlino v. Whitpain Investors , 499 Pa. 498, 453 A.2d 1385 (1982).
Further, this Court held the Township erred when it considered the plan under the old ordinance rather than the new ordinance. We concluded Landowner submitted its plan after passage of the new ordinance; therefore, under Section 508(4)(i) of the MPC, 53 P.S. § 10508(4)(i), which provides that an application for subdivision approval is governed by the ordinance in effect at the time the application is filed, the new ordinance applied. Additionally, as to Objectors' arguments that the Township's approval of the plan was defective, this Court rejected some arguments and accepted others.5
Thereafter, both parties filed petitions for allowance of appeal to the Supreme Court, which were ultimately denied. The plan approval appeal proceeded on remand. Meanwhile, however, while the petitions for allowance of appeal were pending, Landowner sent a letter to the ZHB requesting that it conduct a hearing on the procedural validity challenge Landowner filed in 2005 and subsequently withdrew pursuant to the settlement agreement.6
The ZHB held a hearing on the validity challenge at which it heard testimony and received exhibits regarding the legal status of the 2005 challenge and the relevancy of this Court's decision in Miravich II declaring the settlement agreement invalid. The ZHB concluded there was nothing before it to consider because Landowner unconditionally withdrew its challenge in October 2005. The ZHB also held it could not exercise equity powers to conclude Landowner's withdrawal of the challenge was nullified by this Court's determination that the settlement agreement was invalid because zoning boards lack equity powers.
Landowner appealed to the trial court, challenging both the ZHB's denial based on jurisdictional grounds and the validity of the new ordinance. The trial court determined Landowner properly filed an appeal within 30 days after the adoption of the new ordinance, which was only withdrawn after the parties reached a settlement agreement. Thus, the trial court remanded to the ZHB for a determination on the merits. The trial court explained the settlement agreement was a contract between Landowner and the Township, and when this Court held it was invalid in Miravich II , Landowner did not receive the benefit of its contractual bargain. As such, the trial court determined Landowner should be placed back to its original position, and the ZHB had jurisdiction to hear the 2005 procedural validity challenge. The trial court also determined that in Miravich II this Court intended the matter to be remanded to the ZHB because only the ZHB had jurisdiction over a procedural validity challenge filed in 2005.7
On further appeal by Objectors, this Court affirmed, holding, ...
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